Posted on 01/24/2007 7:45:58 AM PST by SmithL
"The Constitution doesn't say every individual in the United States or every citizen is hereby granted or assured the right of habeas,'' Gonzales told Sen. Arlen Specter, R-Pa., during a Senate Judiciary Committee hearing Jan. 17.
Gonzales acknowledged that the Constitution declares "habeas corpus shall not be suspended unless ... in cases of rebellion or invasion the public safety may require it.'' But he insisted that "there is no express grant of habeas in the Constitution.''
Specter was incredulous, asking how the Constitution could bar the suspension of a right that didn't exist -- a right, he noted, that was first recognized in medieval England as a shield against the king's power to dispatch troublesome subjects to royal dungeons.
Later in the hearing, Gonzales described habeas corpus as "one of our most cherished rights'' and noted that Congress had protected that right in the 1789 law that established the federal court system. But he never budged from his position on the absence of constitutional protection -- a position that seemingly would leave Congress free to reduce habeas corpus rights or repeal them altogether.
(Excerpt) Read more at sfgate.com ...
Gonzales is an idiot, and worse, as Attorney General and the country's chief law enforcement officer, he's a dangerous idiot. He is unfit for the office he holds.
Absolutely.
I understand all that. so you're saying that Golzales was debating the source of the right and not whether we had it or not. I read the article to suggest he was pulling a Bork and stating there was no right to habeus corpus other than what's been established legislatively.
"It's also true that the Constitution does not grant citizens the right to eat."
This about says it all. LOL Right on target with common sense and not sneaky tactics around the obvious.
Sounds like that particular line of reasoning may have some nasty unintended consequences.
He's certainly a dope when it comes to the 2nd Amendment.
Where do you find this in the Constitution?
Basically Specter was right and Gonzales was wrong. Habeas Corpus' status in the Constitution was established in an 1808 ruling by John Marshall.
Marshall said that the Constitution's habeas corpus clause obliged the first congress to establish its "life and activity" as an power of the court. The constitution's clause thus functions as more than a simple prohibition against suspension. It makes the court's power to issue the writ an affirmative one. As Marshall wrote, "if the means [of issuing the writ] be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted."
That is also why attempting to do a backdoor suspension of habeas by stripping court jurisdiction would be unconstitutional, even though stripping court jurisdiction on other matters would not.
You're incorrect. John Marshall explained the function of the habeas corpus clause in the 1808 ruling of Ex Parte Bollman. The clause's existence, he said, did not simply prevent Congress from suspending habeas corpus - it also obliged Congress to provide a means of issuing the writ in all cases where it is not suspended. Wrote Marshall "for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted."
Yes, he is. Remember that we're talking about the same guy who claimed George Washington invented electronic wire tapping.
As far as AG's go, Gonzales is thoroughly unimpressive. We need an Edwin Meese right now, but what we have is only marginally better than a Janet Reno.
"or if the public safety may require it."
Justice Thomas said that the current interpretation of the Commerce Clause allows Congress to "regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers."
"Public safety" suggests habeas corpus is a vulnerable as the concepts swept away by interpreting third order effects on commerce as matters of Federal control. Drunk drivers, seat belts, and yes, firearms, are matters impinging on public safety.
And the Second does not guarantee everyone a right to bear every form of arms.
jmc813:
"-- Where do you find this in the Constitution? --"
-87-
He 'finds it' the same place he found this howler of a misconception:
"-- The BoR was written to control ONLY the federal government while leaving state governments free to violate them at will if not prohibited within their constitutions. --"
The gungrabbers never rest in their efforts to justify prohibitions on 'certain' types of arms.
"Article VI makes it clear that our supreme Law of the Land cannot be infringed, '-- any Thing in the Constitution or Laws of any state to the Contrary notwithstanding. --'"
Still trying that deception. Article VI is referring to laws passed which do NOT apply only to the fedgov. Since the BoR was created to reduce fear of the fedgov it was not intended to apply to states. Anti-federalists (who wanted MORE state autonomy) would have NEVER supported restrictions on them through the BoR.
State governments were not covered as Marshall has ruled nor were they intended to be.
The Fourteenth was passed because the states could LEGALLY violate the BoR.
What "majority rule" has to do with this only exists within your mind.
Wow.
I used to think that all conservatives believed in liberty.
How naive I was.
Doesn't everything?
No.
It speaks of "the People" not individuals and explicitly mentions the militia as a justification for the protection of that right. Protection of a Free State was the function of a militia specified within the document. Strict construction does not always lead to the result we might like.
Nor is there any indication that the People believed criminals or lunatics should be allowed to possess arms. Or that everyone has a right to a nuclear weapon or Abrams tank.
I agree.
If you are calling me a "gungrabber" then you are a LIAR.
John Marshall specified what the BoR applied to NOT me. If anyone wants to believe YOU as opposed to John Marshall they should have their head examined.
What some think is Liberty is just anarchy.
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